Drillex, Incorporated

Plain-English summary

MSHA cited Drillex after an employee transported 565 electrical blasting caps in a pickup truck's cab, alleging that the caps were exposed to sparking metal in violation of 30 C.F.R. § 56.6047. Judge George A. Koutras found that MSHA had not proved the cab was constructed of sparking metal or that the detonators were otherwise exposed to it. The decision noted that the caps were in their original cartons and nonconductive containers, and that local permits authorized the transport. Citation No. 2655924 was vacated and the proposal for a civil penalty was dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.6047
• Outcome: Citation No. 2655924 was vacated and the civil-penalty proposal was dismissed.
• Key point: MSHA must prove each element of a cited safety standard, including the presence of exposed sparking metal when that element is alleged.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. DRILLEX INC.
DDATE:
19871124
TTEXT:

                Federal Mine Safety and Health Review Commission
                       Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 86-128-M
PETITIONER A.C. No. 54-00271-05501 J7Y

      v.                                        Cantera Metro

DRILLEX, INCORPORATED,
RESPONDENT

                                      DECISION

Appearances: Jane Brunner, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York,
for the Petitioner;
Antonio Garcia-Soto, Esq., Santurce,
Puerto Rico, for the Respondent.

Before: Judge Koutras

                                Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment of
$68 for an alleged violation of mandatory safety standard 30
C.F.R. 56.6047, as stated in a section 104(a) "S & S" Citation
No. 2655924, served on the respondent by an MSHA inspector on May
28, 1986.

                                       Issues

 The issues presented in this proceeding are as follows:

                1. Whether the respondent violated the cited
           mandatory safety standard, and if so, the appropriate
           civil penalty to be assessed for the violation based
           on the criteria found in section 110(i) of the Act.

Page 2

~1973
2. Whether the inspector's "significant and
substantial" (S & S) finding concerning the
violation is supportable.

              3. Additional issues raised by the parties are
         identified and disposed of in the course of this
         decision.

               Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub.L.

95-164, 30 U.S.C. 801 et seq.

    2. Section 110(i) of the 1977 Act, 30 U.S.C.      820(i).

    3. Commission Rules, 20 C.F.R.   2700.1 et seq.

Stipulations

    The parties stipulated to the following (Tr. 3-6):

             1. The respondent is a contractor engaged in a business
         performing blasting and drilling services for mine
         operators engaged in the business of mining aggregates.

             2. The respondent is subject to the jurisdiction of the
         Mine Act.

             3. For purposes of the Mine Act, the respondent is a
         small operator, employing four to five people in its
         operations covered by the Act, and its annual blasting
         and drilling activities consists of 557 man-hours.

             4. Respondent's history of prior violations consists
         of one order issued in May 1985, for which the respondent
         paid an uncontested civil penalty assessment of $180.
         Two citations issued in February 1987, have not been
         assessed as yet by MSHA, and the respondent confirmed
         that it will not contest the citations and will pay the
         civil penalty assessments.

             5. Payment of the proposed civil penalty assessment
         for the alleged violation in this case will not adversely
         affect the respondent's ability to continue in
         business.

Page 3

~1974
Discussion

 Section 104(a) "S & S" Citation No. 2655924, issued on May

28, 1986, cites a violation of mandatory safety standard 30
C.F.R. 56.6047, and the condition or practice is described as
follows: "Company, Drillex, Inc., transported 565 electrical
blasting caps from the dealer to Cantera Metro (54-00271), inside
the pick-up cab, mark Isuzu, tag no. 299879, where blasting caps
were exposed to sparking metal. A person was driving the
pick-up."

 MSHA Inspector Juan Antonio Perez, testified that he has

been employed as an inspector since 1975, and that he is a
professional licensed engineer with a background in chemical and
metallurgical engineering. He confirmed that his duties include
compliance inspections of sand and gravel quarries and cement
plants, and that he has conducted approximately 2,000 inspections
during his tenure with MSHA.

 Mr. Perez confirmed that he issued the contested citation

during the course of an inspection he was conducting at the
Cantera Metro quarry operated by Metro Industry, Inc. During the
course of that inspection, he observed a pickup truck arriving at
the mine site, and upon observation of the truck he determined
that it was carrying a load of blasting caps in the driver's
compartment or cab. Upon questioning the driver of the truck, Mr.
Perez learned that the truck was owned by the respondent and that
the driver was one of the respondent's employees.

 Mr. Perez stated that he determined the number of electrical

blasting caps present in the cab of the truck by reviewing the
delivery documents produced by the driver. Mr. Perez believed
that the blasting caps presented a hazard in that they were
exposed to the "sparking metal" of the cab of the truck,
including the doors, and that is why he cited section 56.6047 of
the regulations. He confirmed that he observed ammonium nitrate
in the cargo bed of the truck.

 Mr. Perez believed that the respondent was negligent in that

the detonator caps in question were readily observable in the cab
of the truck. He also believed that the caps presented a hazard
in that they are considered to be explosive. He believed that an
accident was reasonably likely to occur because all of the
ingredients for such an event were present, namely, explosive
caps, sparking metal, and the driver in the cab of the truck.

Page 4

~1975
Mr. Perez confirmed that the electrical blasting caps in question
are considered to be explosives under MSHA's regulations, and
were not "blasting agent's" within the exception found in section
56.6047.

 On cross-examination, Mr. Perez stated that ammonium

nitrate, in its natural state, is a fertilizer and not an
explosive. In order to be considered an explosive, it must be
combined with a fuel oil. He conceded that his citation makes no
reference to any such explosive material being transported in the
back cargo area of the truck.

 Mr. Perez confirmed that abatement was achieved by

transferring the remaining cited detonator caps to another truck
after the initial delivery, and that the citation was terminated
approximately an hour after it was issued. Mr. Perez further
confirmed that his enforcement jurisdiction over the respondent
is limited to any trucks actually found on quarry or mine
properties, and that in the instant case, he inspected the truck
after it was driven onto the mine site in question.

 Mr. Perez confirmed that he has no particular expertise or

knowledge with respect to the use of explosives or blasting
materials, and that his general knowledge of explosives is from
his "on the job" work experience as an inspector and from his
attendance at MSHA training sessions and seminars. He agreed that
the manner in which the cited detonator caps were being
transported did not violate any local explosive laws or
regulations or other Federal laws or regulations.

 The parties agreed that at the time the citation was issued,

the driver of the pickup truck, who was an employee of the
respondent, was delivering electrical detonator caps to a mine
quarry operated by Metro Industries Inc. The pickup used to
deliver the detonators was owned by the respondent, and the
driver was making the first of two deliveries scheduled for that
day. The first delivery consisted of 245 detonators, and the
scheduled second delivery to another site consisted of 320
detonators, thus accounting for the total of 565 detonators cited
by the inspector.

 Respondent produced copies of a form issued by the local

police department dated May 28, 1986, granting permission to one
Jose Collazo Bonilla, the driver of the truck in question, to
transport two loads of electrical detonators along a designated
route specified on the face of the forms. The forms reflect that
they were issued at 6:58 and 7:06 a.m., and the information
describing the pickup truck in question, including

Page 5

~1976
the tag number, is identical to that stated by the inspector on
the face of the citation (exhibit R-1).

 Although the police permit in question is in Spanish,

respondent's counsel translated it for the benefit of the Court
and petitioner's counsel, and upon review of the form by
Inspector Perez, he confirmed that the permits are in fact as
represented by the respondent.

 Mr. Perez explained the general procedures normally followed

in the transportation of explosives, and he conceded that he made
no determination as to whether those procedures were in fact
followed in this case. He explained that it was his understanding
that local police regulations required separate trips when
multiple deliveries of detonators are made to local mine sites.
He confirmed that his principal concern in issuing the citation
was his belief that the detonators were exposed to the truck
"sparking material," namely, the interior metal cab framing.

 Mr. Perez stated that the detonators in question were packed

inside their original manufacturer's cardboard containers and
that the boxes were stacked in the cab of the truck from the
floor to halfway up the front cab window. He could not state how
many containers he observed, and denied that the boxes were
stored inside another container. However, he later stated that
they were inside another non-conductive container as required by
section 56.6057, but that it had no top. Petitioner's counsel
asserted that the detonator containers were inside the type of
container required by section 56.6057, and if they were not, the
inspector would have cited a violation of that standard. Mr.
Perez conceded that this was true.

 Mr. Perez admitted that he did not inspect the interior of

the truck cab to determine the actual composition of the metal
interior framework and did not determine whether it was aluminum
or painted with a "non-sparking" paint. He also admitted that he
had no knowledge as to whether or not the truck ignition key was
aluminum and did not inspector or look at the key. He admitted
that aluminum material is "non-sparking."

 Mr. Perez stated that the electrical detonators were

classified as a "class C explosive," but he conceded that they
could not explode while packed inside the manufacturer's original
boxed containers.

Page 6

~1977
At the close of MSHA's case, respondent's counsel made a motion
for summary dismissal of the citation on the ground that MSHA had
failed to produce any evidence, or to otherwise establish, that
the interior of the truck cab where the electrical detonators
were located and observed by the inspector was composed of
sparking metal, or that the detonators were otherwise exposed to
any sparking metal (Tr. 65-66). The motion was initially taken
under advisement, subject to any re-dirct or rebuttal testimony
by MSHA (Tr. 66). Respondent's motion was again renewed (Tr. 83,
99), and it was tentatively granted from the bench, subject to
the filing of a posthearing brief by MSHA, and the receipt of the
final hearing transcript (Tr. 99-102, 107). Respondent was also
afforded an opportunity to file a brief (Tr. 107).

MSHA's Arguments

 In its posthearing brief, MSHA views the single issue in

this case to be whether or not its mandatory standards permits
the carrying of explosives in the passenger cab of a truck. MSHA
submits that such a practice is prohibited by 30 C.F.R. 56.6047
and by its overall regulatory scheme pertaining to the
transportation of explosives. MSHA points out that section
56.6047 plainly requires that there be no sparking metal exposed
"in the cargo space," that the cargo space be equipped with
"suitable sides and tail gates," and that the explosives "shall
not be piled higher than the side or end enclosures." MSHA
asserts that if the standard is construed to permit the
transportation of explosives in the cab of a vehicle, or in any
area other than the acknowledged cargo space, the quoted
provisions of the standard would be rendered meaningless. MSHA
maintains that the standard obviously contemplates that the
"cargo space" of the vehicle is only that area which is enclosed
by the sides and tailgate of the vehicle, and not the area within
the passenger cab. MSHA concludes that the standard only
addresses the presence of exposed sparking metal in the cargo
space because that is the only area of the vehicle where it is
permissible to place explosive materials, and to hold otherwise
would authorize the placement of explosives in the passenger cab,
which is not a cargo space, where the explosives could indeed be
exposed to sparking metal. Consequently, MSHA believes that the
placement of explosives in the cab of a pickup truck constitutes
a clear violation of the cited standard.

 With regard to its overall regulatory scheme concerning the

transportation of explosives, MSHA cites section 56.6050, which
provides as follows: "Other materials or supplies shall

Page 7

~1978
not be placed on or in the cargo space of a conveyance containing
explosives, detonating cord or detonators, except for safety fuse
and except for properly secured, nonsparking equipment used
expressly in the handling of such explosives, detonating cord or
detonators." (Emphasis added).

 MSHA argues that the presumptive placement of explosives in

the cargo space of a vehicle forms the only conceivable basis for
excluding other materials or supplies "on or in the cargo space."
Similarly, the standard's exception for "nonsparking" equipment
would serve little purpose if there was no requirement to
transport explosives in the same cargo space. MSHA concludes that
a contrary interpretation of the standard would curiously subject
covered employers to possible citations in circumstances where
sparking equipment was present in the cargo space of a vehicle
while explosives were present in the passenger cab, and submits
that the standard has no such intent.

 MSHA also cites section 56.6040, which provides as follows:

"Explosives and detonators shall be transported in separate
vehicles unless separated by 4 inches of hardwood or equivalent."

 MSHA argues that section 56.6040 contemplates that all

explosives and detonators are to be transported in the cargo
space where they are to be separated as specified. MSHA points
out that the standard does not mention, or imply, that these
materials may be separated merely by placing the explosives or
detonators in the passenger cab of a vehicle, and that absent the
required separation inside of the cargo space, employers are
required to utilize separate vehicles. Since this standard sets
forth the only alternative available to employers engaged in the
transportation of explosives and detonators, MSHA concludes that
the standard would indeed reference the use of the passenger cab
if such a practice was deemed appropriate. MSHA maintains that
the respondent in this case was engaged in transporting
explosives and detonators in the same vehicle. Since the cargo
space was full, MSHA suggests that the respondent was attempting
to avoid having to make two trips or the use of two vehicles.

 At the hearing, MSHA's counsel took the position that while

the cited standard section 56.6047, makes reference to sparking
metal exposed in the cargo space of vehicles used to transport
explosives, since the detonators in question were in the
passenger cab of the truck, rather than the normal rear truck
cargo bed, the cab of the truck would be considered the cargo
space for purposes of the standard. At the close of the

Page 8

~1979
hearing, counsel conceded that the essence of the alleged
violation is whether or not the truck cab contained sparking
metal, and whether the blasting caps were exposed to any such
sparking metal (Tr. 103).

                       Findings and Conclusions

Fact of Violation

 The respondent is charged with an alleged violation of

mandatory safety standard 30 C.F.R. 56.6047, which provides as
follows:

      56.6047 Vehicle construction

           Vehicles used to transport explosives, other than
      blasting agents, shall have substantially constructed
      bodies, no sparking metal exposed in the cargo space,
      and shall be equipped with suitable sides and tail
      gates; explosives shall not be piled higher than the
      side or end enclosures.

 Respondent produced copies of two permits issued by the

local police department on the day the citation was issued,
attesting to the fact that the transportation of the electrical
blasting caps in question satisfied local police regulatory
requirements, and MSHA did not dispute this fact (exhibit R-1,
Tr. 52).

 MSHA's conclusion that the respondent was transporting

explosives in the rear of the truck in question is unsupported by
any credible or probative evidence, and it is rejected. The
record reflects that Inspector Perez was not sure what he
observed in the rear of the truck. Although he alluded to "other
explosives" in the back of the truck, he obviously made no effort
to identify them. Although he further alluded to ANFO, an
explosive brand name, he stated that "I cannot testify as to
anfo" (Tr. 22, 26).

 The only specific "explosive" material referred to by Mr.

Perez were bags of ammonium nitrate (Tr. 22). However, he
conceded that this material was not an explosive (Tr. 23). He
also conceded that the citation he issued makes no mention of any
explosives being carried in the rear of the truck (Tr. 23). Mr.
Perez explained that ammonium nitrate, in its natural state, was
a fertilizer and not an explosive, and in order to

Page 9

~1980
make it an explosive, one must add diesel fuel oil. He reiterated
that the ammonium nitrate he may have observed was not an
explosive (Tr. 26).

 Mr. Perez confirmed that ammonium nitrate is considered a

"blasting agent," under MSHA's regulations. However, he conceded
that section 56.6047 provides for an exception for blasting
agents, and that the transportation of such materials in the
truck in question was not prohibited by that standard (Tr. 25,
28). He also confirmed that the transportation of the blasting
caps in question in the cab of the truck did not violate any
local laws or any regulations of the Federal Treasury Department,
Alcohol, Tobacco and Firearms (ATF) Agency (Tr. 37-38). Mr. Perez
suggested that the reason the blasting caps were carried in the
cab of the truck was that there was no room in the back of the
truck (Tr. 28).

 Mr. Perez confirmed that the detonators in question were not

exposed, but were packed in their original manufacturer's
cartons. The cartons were in turn located in non-conductive
containers as required by section 56.6057, and both Mr. Perez and
MSHA's counsel conceded that the manner in which they were stored
was in compliance with that mandatory standard (Tr. 76, 77).

 Although one may conclude that it may have been imprudent

for the respondent to transport electrical detonator caps in the
cab of the truck, I find no regulatory or evidentiary basis for
finding a violation in this case. Aside from the fact that MSHA
produced no evidence to establish that the cab of the truck was
constructed of non-sparking metal, MSHA's posthearing arguments,
which I find to be rather strained, and which I reject, would
require the respondent to consider two or three mandatory
standards together before reaching any rational conclusion that
transporting blasting caps in a cab of a truck was or was not
prohibited.

 In my view, the regulatory intent of section 56.6047 is to

establish minimum construction standards for vehicles used to
transport explosives. Contrary to MSHA's arguments, I cannot
conclude that the standard is intended to prohibit the
transportation of explosives in the cab of a truck. As a matter
of fact, as pointed out earlier, MSHA's position during the
hearing was that the cab of the truck was in fact the cargo space
since the explosives were located there, and since the interior
of the cab was of metal construction, which MSHA assumes was
exposed sparking metal, a violation was established. MSHA's
counsel stated that "once you put the cargo in the cab of the
truck, then you've by definition made the cab

Page 10

~1981
of the truck the cargo space" (Tr. 61). When asked to define the
term "sparking metal," Inspector Perez replied "I don't know, its
zinc, iron, . . . whatever the truck is made of" (Tr. 60). When
asked whether or not the inspector had in mind the phrase "no
sparking metal" as stated in section 56.6047, when he issued the
citation, MSHA's counsel replied in the affirmative (Tr. 62).

 Although Mr. Perez indicated that he was a licensed

metallurgical engineer, his experience in explosives was limited
to several seminars, and his experience and training in applying
MSHA's mandatory standards (Tr. 30-31). MSHA's counsel conceded
that Mr. Perez failed to inspect the interior of the truck cab to
determine whether it was in fact constructed of sparking metal.
Counsel further conceded that Mr. Perez simply assumed that the
interior of the truck was constructed of sparking metal, and took
the position that this was common knowledge. Counsel acknowledged
that aluminum metal, and metal which is treated or painted with
non-sparking paint, would be considered non-sparking and in
compliance with the standard. However, counsel took the position
that the burden was on the respondent to establish this (Tr.
81-82). I disagree. In my view, the burden of proof here lies
with MSHA and not the respondent. MSHA must establish all
elements of the cited standard, particularly the fact that the
interior of the truck was constructed of sparking metal.

 On the facts of this case, MSHA's evidentiary proof is

totally lacking to support any conclusion that the interior of
the truck was constructed of sparking metal. Mr. Perez considered
"sparking metal" to be any metal that can heat and produce a
spark. As an example, he explained that if a truck driving down a
road hit a stone, and the stone hit the truck body and produces a
spark, then he would consider the metal to be sparking metal (Tr.
78-79). Yet, he simply looked at the metal door, and in a less
than cursory way, determined that it was constructed of sparking
metal. He made no inspection of the cab interior to determine
whether it was constructed of aluminum, or whether it was coated
or painted with non-sparking paint. As for the door, he candidly
admitted that "I didn't prove that it can produce a sparking
material on that" (Tr. 81). He also made no determination as to
whether or not the truck ignition key was made of aluminum, and
acknowledged that he has heard of such keys (Tr. 98). Given his
asserted metallurgical background, I would think that it would
have been a simple matter for Mr. Perez to make a determination
as to the composition of the interior of the truck to determine
whether it was constructed of sparking metal. The fact is that he
did not do so.

Page 11

~1982
Under all of the aforesaid circumstances, I conclude and find
that MSHA has failed to establish a violation of section 56.6047.
Accordingly, the respondent's motion to dismiss, made at the
hearing, IS GRANTED, my previous tentative bench ruling in this
regard IS AFFIRMED, and the citation IS VACATED.

                                 ORDER

 In view of the foregoing findings and conclusions, section

104(a) Citation No. 2655924, issued May 28, 1986, citing an
alleged violation of 30 C.F.R. 56.6047, IS VACATED, and MSHA's
proposal for assessment of civil penalty IS DISMISSED.

                            George A. Koutras
                            Administrative Law Judge